February 22, 2010

So Many Origins

One must always avoid the temptation to view the Constitution as consisting solely of what has gained the attention of the judiciary. And yet we tend to ignore what is never litigated. Each state, for example, regardless of population, has equal representation in the United States Senate. This fact—coupled with the reality that every member of Congress is elected by a provincial constituency, and therefore has little natural incentive (unless they hope to run someday for the White House) to think in terms of the national good—has larger consequences for the lives of ordinary Americans than the “magnificent generalities,” to use Robert Jackson’s term, that lawyers tend to obsess about. Those “generalities,” precisely because they are subject to endless debate and dependent on electoral results, are given radically shifting meanings over time; but those shifting meanings somehow do not affect our sacred Constitution, which remains unlitigated and remarkably static. We continue to wait until January 20 to inaugurate our presidents, but not because this makes sense: we do so because the Twentieth Amendment, while wisely abolishing March 4 as Inauguration Day, unfortunately settled on January 20 instead (a date far closer to March 4 than to Election Day itself). And of course there is our egregious Electoral College, another unlitigated feature of the system.

Now two new books help give us a view of the entire document. They do not ignore the “generalities,” but they discuss the unlitigated portions as well, and thus provide some essential civic education. Students (and scholars) looking for clause-by-clause annotations of the United States Constitution have available the five volume Founders’ Constitution edited by Philip Kurland and Ralph Lerner, which has only historical materials and ends with the Twelfth Amendment, added to the Constitution in 1804; and they have the “Analysis and Interpretation” of the United States Constitution published by the Library of Congress, the last edition of which was published in 2002 (though supplements have been published taking into account cases decided through June, 2008). Given that the 2002 edition alone, without the supplements, is 2,115 pages long, one can be grateful for these two considerably shorter (and portable) annotations of the Constitution. They were composed, respectively, by a leading journalist, Seth Lipsky, and an acclaimed historian of the early American Republic, Jack Rakove.

Each book has its strengths and weaknesses. Rakove’s volume is smaller than Lipsky’s, but it contains a lot of wasted white space because of the decision to publish the Constitution’s text on facing pages opposite the commentary. (To take the most glaring example, the one-line authority given Congress “To borrow Money on the credit of the United States” occupies a full page of its own.) Harvard also chose to include 31 pages of illustrations. Lipsky’s book, by contrast, simply interweaves the Constitution’s text and his commentary. Rakove’s book may be more elegant, but Lipsky’s is more reader-friendly, because of the amount of information (and opinions) that Lipsky is free to provide. Still, Rakove’s inclusion of (and comments on) the Declaration of Independence is useful, and his extensive introduction is especially valuable. Rakove is one of the most gifted writers among contemporary American historians, and he provides an illuminating overview of the political history that generated both the Declaration in 1776 and then, only eleven years later (following the failure of our first constitution, the Articles of Confederation) the Constitution that was drafted in Philadelphia.

Inevitably, one will prefer either Rakove’s or Lipsky’s specific annotations. Rakove, for example, is better on Congress’s power to declare war, while Lipsky is better on Congress’s power to pass “an uniform Rule of Naturalization.” Readers will more often learn new things from Lipsky. Although I have been teaching the American Constitution for more than three decades, I had never really pondered the grant to Congress of the power “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States” (emphasis added). Lipsky informs me that “current Coin” referred to the fact that Mexican dollars were in common circulation. Indeed, only in 1857, in an Act Relating to Foreign Coins, did Congress explicitly reject the use of “foreign gold and silver coins” as “a legal tender in payment for debts.”

Lipsky does not claim to be a scholar. Instead, as one might expect, he writes as a passionate citizen, with particular views that sometimes color his annotations. He invites a dialogue with his readers, whether or not they agree with his tilt. He appears, for example, to be a federalism buff, revealed most dramatically in his opening comment on the First Amendment, which begins “Congress shall make no law…” “This is the most important point to be made in respect to the First Amendment,” writes Lipsky. “It affects the Congress only. And pointedly not the states.” This may be right, as a historical matter: Madison, for example, was deeply disappointed by the limited reach of the Bill of Rights. But only a particular, not to say peculiar, sensibility would describe this as “the most important point” worth making about the First Amendment.

Lipsky is fully aware, of course, that the Supreme Court has, since 1925, applied the First Amendment to the states through the Fourteenth Amendment, but he offers surprisingly little discussion of this "incorporation" controversy. He does note, though, that it is at the heart of a case the Supreme Court will decide this year concerning the incorporation of the Second Amendment's right to bear arms as a limitation on the states' power to regulate handguns and other firearms. The Heller decision in 2008 reaches only D.C. and Congress; McDonald, the case currently before the Court, tests whether Chicago (and the rest of the nation) is similarly restricted.

Lipsky also sometimes makes assertions that would not pass muster before a more careful scholar. He loathes the Dred Scott case, and quite properly. But there is no good reason to believe that it “put the country on a course for civil war.” Indeed, by ruling unconstitutional the main plank of the nascent Republican Party, the prohibition of slavery in the territories, one could argue that the court was trying to prevent division. Had the Republicans acquiesced to Dred Scott, there would have been no war. And, one can easily predict, had Dred Scott vindicated Scott’s claims to liberty--in effect endorsing the legitimacy of the Republican plan to prevent the further extension of slavery--the South would have been even more quick to secede on the occasion of Lincoln’s victory.

There are some omissions by both writers that are worth noting. The Constitution is gloriously secular in its Preamble, and both authors pay due heed to the importance of the “No Test Oath” Clause of Article VI, which prevents office-holders from having to swear allegiance to any particular set of religious beliefs. Both of these constitutional realities quite plainly put the lie to those who claim that this is a “Christian nation.” And yet the Constitution provides that presidents will have ten days “(Sundays excepted)” to veto legislation. The parenthetical is a reminder of the expectation that the president would likely observe the Christian Sabbath as a day of rest.

Consider also the very last clause of the Constitution, “Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eight-seven….” Is it really necessary to note that the “our” generates a profoundly begged question? To be sure, there were apparently no more than approximately 3,000 Jews in the United States in 1790, and perhaps the presence of non-Christians was tolerated rather than celebrated in the United States of 1787. After all, John Jay, in the second paper of The Federalist Papers, proclaimed that “Providence has been pleased to give this one connected country to one united people—a people . . . professing the same religion…” But Jay’s comment is absurdly untrue in the United States of 2010, where there are now more Buddhists than members of the merged Congregationalists and United Church of Christ. The background assumptions of 1787 were profoundly different, and it would have been nice to have commentary on this subject from two such thoughtful (and opinionated) writers. Surely it is the duty of anyone interested in American constitutional development to recognize the degree to which social and cultural changes have transformed our notion of what the Constitution means, at least with regard to its “magnificent generalities."

Former Justice O’Connor has made one of her post-Court priorities the enhancement of American civic education. “Knowledge of our Constitution and the role of our courts is not handed down in the gene pool," she has written. "Each generation must learn about our system of government and the citizen’s role.” About this, she is certainly correct. Her mistake is to believe that “knowledge of our Constitution” is basically equivalent to learning about “the role of our courts.” This fundamental confusion ultimately disserves the cause of citizen education, which badly needs to encourage deeper thought about all of those provisions of the Constitution that will never garner the Court’s attention. The ultimate importance of both Rakove’s and Lipsky’s volumes is that they help to enable such overdue conversations.

Sanford Levinson is professor of law and government at the University of Texas (Austin) and the author of Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It).